Common sense on bail: Judges should be able to consider danger to the public

Saed Hindash/The Star-LedgerLee Anthony Evans walks down a ramp from from the Essex County Correctional Facility after posting bail Aug. 20, 2010. Evans is charged with the murders of five boys in Newark in 1978.

As soon as some criminal defendants are released on bail, they commit new crimes.

A case in point: Jose Carranza was free on bail after being charged with child rape and assault when, according to police, he helped murder three college friends in the infamous Newark schoolyard killings in 2007.

But don’t blame the judge who released him. In New Jersey, judges aren’t allowed to consider potential danger to the community when setting bail. They can only consider the risk that a defendant might flee before trial.

State such as California, Florida, Texas and Massachusetts allow judges wider latitude. They can consider risk to the community and deny bail for defendants they believe will use violence if released. Federal judges can consider public safety as well.

Now, Acting Essex County Prosecutor Robert Laurino is pushing for a sensible change to our state constitution that would give New Jersey judges the same power. His campaign began in response to the release on bail of Lee Anthony Evans, a man charged with killing five Newark teenagers more than 30 years ago. Evans was released after his family posted bail in the form of three pieces of property, and his attorney argued he wasn’t a flight risk.

If the judge had considered danger to the community as a factor, prosecutors believe Evans might never have been released. They worry because a murder defendant out on bail can more easily intimidate witnesses. In other brutal crimes like domestic violence, defendants can simply violate restraining orders to retaliate against victims.

Protecting society is worth temporarily detaining someone who is awaiting trial. In states that recognize that, judges hold special hearings to assess this; the defendant is present with a lawyer who can argue against pretrial detention.

That’s a much fairer process than what judges in New Jersey often do with dangerous defendants today: They simply set bail exorbitantly high as a way of keeping that person detained before a trial.

It makes more sense to legitimize the unacknowledged purpose of many bail hearings, which is to protect the public. If risk of flight is sufficient reason to deny bail, then risk of danger should be, too.